Decisions

TATC File No. W-3588-33
MoT File No. SAP-5504-67054 P/

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Paul Michael Stevens, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96-433, subparagraph 602.14(2)(a)(i)


Review Determination
Stephen Rogers


Decision: April 29, 2010

Citation: Stevens v. Canada (Minister of Transport), 2010 TATCE 9 (review)

Heard at Vancouver, British Columbia, on March 5, 2010

Held: The Minister of Transport did not prove, on a balance of probabilities, that the Applicant, Paul Michael Stevens, contravened subparagraph 602.14(2)(a)(i) of the Canadian Aviation Regulations. Consequently, the penalty of $750 imposed by the Minister is cancelled.

I. BACKGROUND

[1] The Applicant, Paul Michael Stevens, is a private pilot and part owner of a 1947 Aeronca 7AC aircraft based at Delta Air Park, an aerodrome owned by Metro Vancouver (the regional authority for the Greater Vancouver). On April 22, 2009, the Minister of Transport issued a Notice of Assessment of Monetary Penalty ("Notice") to Mr. Stevens for an alleged contravention of subparagraph 602.14(2)(a)(i) of the Canadian Aviation Regulations ("CARs").

[2] Schedule A of the Notice provides the following:

#1 - CARs 602.14(2)(a)(i)

On or about the 10th day of August 2008, at or near Surrey, British Columbia, when you were not conducting a take-off, approach or landing or when you were not permitted under section 602.15 of the Canadian Aviation Regulations (CARs), you operated an aircraft over a build-up area when the aircraft was not operated at an altitude from which, in the event of an emergency necessitating an immediate landing, it would not have been possible to land the aircraft without creating a hazard to persons or property on the surface, and, in any case, at an altitude that was lower than for aeroplanes, 1,000 feet above the highest obstacle located within a horizontal distance of 2,000 feet from the aeroplane, thereby contravening subsection 602.14(2)(a)(i) of the CARs.

MONETARY PENALTY - $750.00

II. PRELIMINARY MATTERS

[3] As set out in the Notice, the Minister alleged that the offence took place on August 10, 2008. At the outset of the Hearing, the Minister submitted a Motion to Amend the Notice, requesting that the date of the incident be amended to read August 30, 2008. The Motion was granted.

III. STATUTES, REGULATIONS AND POLICIES

[4] Subparagraph 602.14(2)(a)(i) of the CARs provides as follows:

602.14(2) Except where conducting a take-off, approach or landing or where permitted under section 602.15, no person shall operate an aircraft

(a) over a built-up area or over an open-air assembly of persons unless the aircraft is operated at an altitude from which, in the event of an emergency necessitating an immediate landing, it would be possible to land the aircraft without creating a hazard to persons or property on the surface, and, in any case, at an altitude that is not lower than

(i) for aeroplanes, 1,000 feet above the highest obstacle located within a horizontal distance of 2,000 feet from the aeroplane,

. . .

IV. EVIDENCE

A. Minister of Transport

(1) Rick Pollock

[5] Rick Pollock is the Inspector who was assigned to investigate a complaint of low flying made against the Applicant in 2008. Inspector Pollock testified that he contacted Mr. Stevens by telephone. Mr. Stevens was cooperative and admitted that he was flying on August 30, 2008, with his daughter in the area in question but he denied flying lower than 1 000 feet above ground level (AGL).

[6] Mr. Stevens sent an email to Inspector Pollock, in which he provides a summary of the event that occurred on August 30, 2008 (Exhibit M-4). He also attached to his email a photocopy of the first and last pages of the aircraft journey logbook (Exhibit M-2).

[7] Inspector Pollock said that he interviewed three witnesses, Greg Wilson, Robert Fair and Diane Wood, who had observed Mr. Stevens' aircraft at the time of the event. He found that the information they had provided was consistent and believable.

[8] Inspector Pollock stated that the witnesses had recorded the registration mark of the aircraft in question and that a search of the Canadian Civil Aircraft Register revealed that aircraft C-FGVP is an Aeronca 7AC registered to the Orville Group Flying Association (Exhibit M‑1). Inspector Pollock stated that Mr. Stevens was the Pilot‑in‑Command of the said aircraft on August 30, 2008, as indicated in the aircraft journey logbook (Exhibit M-2). An excerpt from the Distributed Air Personnel Licensing System of Transport Canada was produced as evidence. It provides pilot licence information concerning Mr. Stevens (Exhibit M-3).

[9] Inspector Pollock testified concerning two Google maps (Exhibit M-5), with pinpoint locations of Mr. Stevens' home and another pin in the approximate location of the witnesses. He noted that the homes of Mr. Wilson and Mr. Stevens are 0.56 km or 1 800 feet apart. In addition, using a scale or sliding ruler from the Google material, he was able to estimate a field of 858 feet in length directly behind the witnesses' location. This field would be more than sufficient to land any light aircraft. A photograph of aircraft C-FGVP was produced as evidence (Exhibit M-6).

[10] Inspector Pollock testified that he had contacted Nav Canada to obtain radar data available. As the aircraft did not have a transponder that was active and operating, there was no radar evidence of the alleged infraction.

(2) Greg Wilson

[11] Greg Wilson testified that he was in the front driveway of his house, talking with the other witnesses, Mr. Fair and Ms. Wood, when their conversation was disrupted by a low-flying aircraft, barely above the tree level. He indicated that the aircraft was red and white, single engine with the registration mark on the wing. He stated that the aircraft circled three times and returned half an hour later for one more circle. On this last circle, the aircraft did a low-flying loop.

[12] Mr. Wilson was asked how he felt about what the aircraft was doing. He replied that he was not sure what the pilot was doing. He felt that the aircraft was very low and loud. He said that he could easily read the aircraft's registration mark and that Mr. Fair wrote it in his notebook. Mr. Wilson thought that it was unusual that an aircraft would make circles. He also testified that the altitude was constant.

[13] During cross-examination, Mr. Wilson said that he had determined the altitude of the aircraft by having seen previous aircraft. He testified that he had not seen any previous aircraft over flying that afternoon or none was noticed. He could not recall the aircraft's registration mark or which wing it was on. Mr. Wilson was asked at what altitude the aircraft was flying. He replied that he golfs a lot and that the aircraft was the height of his chip shot. This was later clarified to be less than 300 feet AGL with a maximum of 400 feet AGL.

(3) Robert Fair

[14] Robert Fair testified that he was talking in Mr. Wilson's driveway with Mr. Wilson and Ms. Wood, when at 6:55 p.m., they were startled by a low-flying aircraft at 200 feet AGL, that circled three times and departed to the west. Then at 7:30 p.m., the aircraft circled again and left to the north. Mr. Fair indicated that the aircraft was slow and did no aerobatics. He testified that the trees in the area are 80 to 110 feet tall, that the aircraft was no higher that 250 feet AGL and that he could read all the letters of the aircraft's registration mark. Mr. Fair indicated that he always carries a notebook and a pen with him. He testified that he has been reporting aircraft for years to Claudio Bulfone, a Civil Aviation Investigator with Transport Canada at the Vancouver Regional Office. He also testified that the aircraft was very low and at a dangerous height.

[15] During cross-examination, Mr. Fair testified that he had observed all types of aircraft and that most fly in a straight line. He also testified that the number of overflying aircraft has decreased from a previous high of 100 per day to the present 12. Mr. Fair stated that the maximum altitude of the aircraft was 350 feet AGL.

(4) Diane Wood

[16] Ms. Wood testified that her home is close to the pin, as located on the Google map and that she was in Mr. Wilson's driveway when she saw the aircraft doing what she determined was sightseeing. This aircraft was noisier and lower than other aircraft that she usually sees. She testified that the aircraft was not high above the trees and was flying at 200 or 250 feet AGL. She called out the registration mark to Mr. Fair, who wrote it down in a notebook. She also testified that she was concerned about the height of the aircraft and that it sounded like a lawn mower.

[17] During cross-examination, Ms. Woods testified that she was poor with directions but that the total flying time of the three circles was five minutes. She also testified that lots of aircraft fly over, though higher. She was concerned about the height of this aircraft and that it was a bit noisy and annoying at that moment.

B. Applicant

(1) Desiree Carmen Stevens

[18] Desiree Carmen Stevens, who is Mr. Stevens' wife, testified that this aircraft is slow and noisy and that sometimes cars are going faster on the highway than aircraft. She stated that, for her husband and her, the purpose of the flight was to take their 10 year old daughter for a flight. Two photographs were taken by their daughter (Exhibit A-6 and A‑7). The other photograph is a picture of their daughter (Exhibit A-5).

(2) Paul Michael Stevens

[19] Mr. Stevens testified that, at the time of the incident, he was always 1 000 feet above the highest obstacle and that he could always glide to an area free of people. He stated that he approached Surrey, British Columbia, from the south over the water and climbed to 1 400 feet AGL. He testified that he circled in an area slightly south and east of the witnesses and that, as a result, his aircraft might have appeared to be lower than it actually was.

[20] Various exhibits were filed in evidence:

  • a close-up photograph of the witnesses' location showing numerous trees (Exhibit A-1);
  • a map from Energy, Mines and Resources Canada 92 G/2, which shows the contour lines of Surrey (Exhibit A‑2);
  • a real estate map on which Mr. Stevens had marked the route for the flight in question (Exhibit A-3);
  • an article written by Gerry Bellet and entitled "Low-flying aircraft unnerves skier", from the Vancouver Sun of February 4, 2010. In this article, Lieut. David Lavallee from the Canadian Forces says the following: " . . . aircraft can appear to be closer to objects than they actually are." (Exhibit A-4)
  • three photographs (Exhibits A-5, A-6, and A-7). Exhibit A-5 shows the size of the aircraft registration mark. Exhibit A-6 shows the southwest corner of White Rock, British Columbia, with a sun position consistent with time of day for a flight on August 30, 2008. Exhibit A-7 shows the pier at White Rock.

[21] Mr. Stevens testified that, as a glider launch control officer with the Royal Canadian Air Force (RCAF) cadets, he felt that he was well qualified to judge altitude. He indicated that prior to his flight, he listened to ZBB ATIS frequency for the correct QNH. He cross-checked his altimeter with the local field elevation at nine feet. He was on a sightseeing flight with his daughter. He believed that the only way his aircraft registration mark could be seen from the witnesses' location is if he was flying at 1 000 feet AGL.

[22] Mr. Stevens testified that he learned to fly on a scholarship offered to RCAF cadets. His licence indicates that he received a glider licence in 1975, a single engine aeroplane licence in 1976 and a glider instructor licence in 1990. He also has a valid medical certificate.

V. EVIDENCE, DISCUSSION AND POLICY ANALYSIS

[23] There is no question that the Applicant, Mr. Stevens, operated aircraft C-FGVP on August 30, 2008, when the alleged infraction took place.

[24] There is no definitive evidence of the altitude of the aircraft when it flew over Surrey. However, I find the testimony of Mr. Stevens to be very believable and consistent. While I determine the witnesses, Messrs. Wilson and Fair and Ms. Wood, to be credible, I find their judgement of the altitude of the aircraft to be less believable. Had the aircraft flown at 300 feet AGL, there would have been a multitude of complaints from the surrounding community. The Minister has failed to make a compelling case. I cannot accept that Mr. Stevens would operate the aircraft in an unsafe manner or altitude with his 10 year old daughter on board.

[25] While there is no altitude recording on the digital photographs taken by Mr. Stevens' daughter, it must be noted that these photographs are consistent with what would be seen by an aircraft operating at the approved altitude.

VI. DETERMINATION

[26] The Minister of Transport did not prove, on a balance of probabilities, that the Applicant, Paul Michael Stevens, contravened subparagraph 602.14(2)(a)(i) of the Canadian Aviation Regulations.

April 29, 2010

Stephen Rogers

Member